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What's Up in the 8th

The 8th District's opinion in State v. Masci begins by telling us that "on November 16, 2010, the victim met with his former girlfriend at the home of a mutual acquaintance for a night of drinking and partying."  The opinion warns us that "trial testimony of the circumstances leading up to the incident is both conflicting and convoluted," as might be expected in a case in which virtually every witness was suffering from some degree of intoxication.  (Especially the victim:  the court misplaces a decimal and tells us that his BAC reading was 2.78, about seven times the level necessary to make someone dead.)  The panel wades through it all, concluding that it's just enough to convict Masci of felonious assault for running over the victim in his Blazer, the decision mainly serving to remind us how few times we see an opinion in a criminal case beginning with something like, "on November 16, 2010, the victim, his former girlfriend, and a mutual acquaintance attended a church social."  I'm just sayin'.

Pleading guilty to a series of felonies is a serious matter, and sometimes judges try to go the extra mile in ensuring that the defendant appreciates the consequences of what he's doing.  Sometimes that journey can create troubles, as it did in State v. Dissell.  Dissell pled to two counts of 2nd-degree robbery and two 5th degree felonies.  The judge told Dissell he faced a "theoretical minimum term of six months" on the latter counts, but since if he went to prison it would likely be on the first two counts, the "practical minimum" was two years, and that the "practical and theoretical maximum" was 18 years.  One can only imagine the bemused look on Dissell's face; telling this to a heroin addict who'd robbed a bank using only a note containing "implied force wording" was probably like trying to explain the fine points of particle physics to a horse.  The transcript of the entire plea hearing, though, demonstrates that Dissell had a sufficient understanding of what was going on -- at least, he said he did -- so the plea gets by.

Judges can also say too much at sentencing.  When Adam Casshie pleaded for inpatient treatment for his "psychological problems," the judge rejected his entreaties, noting that he'd just done that for another defendant who'd walked out of the treatment center the next day, and so Casshie could "thank that defendant" for the prison sentence he was about to receive.  Casshie appealed, arguing that the court used an improper sentencing criterion.  In State v. Casshie, the panel finds that "although the trial court should have used greater discretion in choosing its words," there is again sufficient material in the record to find that the sentence was appropriate.  So Casshie goes off to prison, perhaps to meet the guy he needs to thank for being there.

State v. Cooper represents probably the 8th's best work in a Crawford case, and we'll discuss that aspect of the decision tomorrow.  It also presents the court with the challenge of hacking through the thicket of Ohio law on lesser included offenses, particularly with regard to theft and robbery.  Cooper and a friend had set up a drug deal intending to rob the dealer; the dealer had a friend, too, who was following in his own car, and when Cooper reached into the car and tried to grab the dealer's money, the dealer's friend interceded, and the two of them began to beat up Cooper.  He escaped into a gas station, where he was subsequently arrested.  Although Cooper had been charged with aggravated robbery on the basis that he allegedly had a gun, this was disputed, and so the judge agreed to charge on the lesser included offense of robbery by force.  Cooper wanted the judge to go the extra mile and charge on attempted theft as well, but the judge refused.

As I explained several years back, there are some conflicting decisions here.  The short version is that in 2000, the Supreme Court held in State v. Carter that theft was not a lesser offense of aggravated robbery, but eight years later in State v. Smith held that theft was a lesser included offense of straight robbery.  This was arguably the product of results-oriented decision-making:  in Carter, the defendant was arguing that theft was a lesser offense, while in Smith she was arguing that it wasn't, so the court reached a result where the defendants lost each time.  As the court notes in Cooper, and Justice Pfeifer noted in his dissent in Smith, this doesn't make much sense, so the panel in Cooper assumes that Smith implicity overruled Carter.   The upshot is that theft or attempted theft is indeed a lesser included offense of robbery in its various forms.  That turns out to be no help to Cooper:  the test on whether a charge on a lesser included offense is warranted is whether the evidence would justify acquittal of the greater charge and conviction of the lesser.  Here, the court concludes, it doesn't:  whether or not Cooper used a gun, his attempt to reach into the car and admission that he told the victim to "lay it down" was clear evidence of force, and so the trial judge could conclude that there was no evidence to support an instruction on mere theft.

Finally, this week's man-bites-dog story comes via State v. Williams, in which Williams seeks to reopen his appeal, claiming that his appellate attorney was ineffective for "failing to to assign as error that the trial court denied Williams trial counsel of his choice."  Turns out Williams did have trial counsel of his choice:  he had retained an attorney, and now wanted the trial court to appoint the public defender to represent him.  The court finds no "controlling authority" for this proposition, and rejects it.

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